Telangana High Court

Mansoor Khan, Nizamabad vs P.P., Hyd on 5 June, 2024

Author: P. Sam Koshy

Bench: P. Sam Koshy

        THE HONOURABLE SRI JUSTICE P. SAM KOSHY
                                  AND
     THE HONOURABLE SRI JUSTICE SAMBASIVARAO NAIDU


                  Criminal Appeal No.88 of 2016

JUDGMENT:

(per the Hon'ble Sri Justice P. Sam Koshy)

The instant is an appeal preferred by the

appellant/accused under Section 374(2) of the Criminal

Procedure Code, 1973 assailing the order dated 23.03.2015 in

Sessions Case No.41 of 2014 passed by the Sessions Judge,

Nizamabad Division, Nizamabad (for short, 'the impugned

order').

2. Heard Mr. C. Vasundhara Reddy, learned counsel for the

appellant / accused and the learned Assistant Public Prosecutor,

for the respondent-State.

3. Vide the impugned judgment, the appellant / accused

stood convicted for the offence under Section 302 of I.P.C. and

he has been sentenced to undergo Rigorous Imprisonment for

life and also to pay fine of ₹.500/-, and in default, to suffer

simple imprisonment for a period of three months. He was

further convicted for the offence under Section 498-A of I.P.C.,

and he has been sentenced to undergo Rigorous Imprisonment

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for three years and to pay a fine of ₹.500/-. In default of

payment of fine amount, the appellant / accused shall suffer

simple imprisonment for three months. Both the above

sentences shall run concurrently.

4. The case of the prosecution in brief is that the deceased,

viz., Tahera Begum died of burn injuries on 03.06.2013 at 13:10

hrs. It is the case of the prosecution that the appellant /

accused herein (husband of the deceased) suspected the fidelity

of the deceased and subjected her to cruelty, beat her up and

also assaulted her. According to the prosecution, on 02.06.2023

at about 18:45 hrs., the appellant / accused picked up a quarrel

with the deceased with a clear intention of killing her; and

during the quarrel the appellant / accused poured kerosene on

the deceased and set her ablaze. As a result, the deceased

raised hue and cry which attracted the neighbouring people who

rushed to the spot and tried to douse the flames. Thereafter, the

neighbours rang up the ambulance and she was taken to the

Government Hospital where the deceased succumbed to burn

injuries on 03.06.2013 at 13:10 hrs. Meanwhile, a dying

declaration was also recorded wherein the deceased is said to

have in very categorical terms, stated that the incident occurred

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because of the pouring of the kerosene by the appellant /

accused and setting her up ablaze by the appellant / accused.

5. The matter was subsequently put to trial and the

prosecution in all examined as many as eight witnesses. The

appellant / accused, in his defence examined three (03)

witnesses including himself and after recording of the statement

under Section 313 of the Criminal Procedure Code, 1973, the

impugned judgment has been passed by the Trial Court wherein

the appellant / accused has been found guilty of the offence

under Sections 302 and 498-A of I.P.C.

6. Learned counsel for the appellant / accused stressed on

the fact that there are no cogent pieces of evidence to establish

the presence of the appellant / accused at the scene of

occurrence on the afternoon of 02.06.2013. He further

contended that though the appellant / accused in fact was with

D.W.2, who is an auto driver, and that on the afternoon of

02.06.2023 when he was on work he received a call from some

person intimating the incident that took place at his house and

that his presence at the scene of incident is highly doubtful, yet

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the Trial Court passed the judgment of conviction on the

appellant / accused.

7. Learned counsel for the appellant / accused submitted

that on a plain reading of the material available on record it

would appear that it is a case of the deceased having committed

suicide and that the deceased had implicated the appellant /

accused. He further contended that there were lot many

discrepancies, omissions and improvements in the case of the

prosecution witnesses, all of which create serious doubts in

respect of : firstly, there being eye-witness or evidence who have

reached the scene of offence immediately. According to him, it

was highly doubtful whether the deceased was in a position to

speak to narrate the fact that it was the appellant / accused who

had committed the offence of pouring kerosene and setting her

up ablaze. He therefore contended that the oral declaration

made by the deceased to the prosecution witnesses and also the

dying declaration recorded also are highly doubtful and

therefore, the appellant / accused is entitled for the benefit of

doubt and he is liable for acquittal of the charges under Sections

302 and 498-A of I.P.C.

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8. Lastly, it was contended by the learned counsel for the

appellant that there is no cogent material whatsoever available

on record to show that in the course of the prosecution there

was material available for offence punishable under Section

498-A of I.P.C. He further contended that it is not a case where

the death of the deceased took place immediately after marriage

within a reasonable period of time after marriage. In the instant

case, as per the records and the witnesses available, the

deceased and the appellant / accused got married around eight

years prior to the date of the incident and they also had a son

born out of wedlock who was around seven years of age. He

further submitted that there were no allegation, charge or even a

remote contention on the part of the prosecution witnesses,

particularly the family members of the deceased, that the

deceased was subjected to cruelty on account of demand of

dowry. Rather the entire prosecution case is that the appellant /

accused used to ill-treat the deceased, or that the appellant /

accused subject the deceased to cruelty on the suspicion of

fidelity and not for any other reason. Thus, according to the

learned counsel for the appellant, the conviction of the appellant

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/ accused under Section 498-A is totally without any evidence

and without any cogent material available on record.

9. Per contra, the learned Assistant Public Prosecutor for the

respondent-State, referring to the prosecution witnesses,

contended that a plain reading of the evidences which have been

given by PW.1 (brother of the deceased) and the other witnesses

who were the immediate neighbours, would establish that they

were the persons who had reached the scene at the time of the

incident. They have categorically stated to have witnessed the

appellant / accused assaulting the deceased on the fateful day

and thereafter when they reached the spot they

found the appellant / accused and the deceased

quarreling and then appellant / accused poured kerosene upon

the deceased and set her up ablaze with a burning stick.

10. Learned Assistant Public Prosecutor further

contended that even there was no strong

cross-examination conducted on the prosecution witnesses so as

to doubt their statement or the veracity of their contention of

having witnessed the entire incident.

She further contended that there was no material

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available on record to disbelieve the Magistrate who recorded the

Dying Declaration and also the contents recorded therein, nor

was the Magistrate subjected to strict cross-examination to

disprove the recording of the Dying Declaration.

11. As regards the charge under Section 498-A of the I.P.C.,

the learned Assistant Public Prosecutor referred to the statement

of the prosecution witnesses who have consistently taken a

stand that, the deceased was subjected to ill-treatment, cruelty

and regular beating at the hands of the appellant / accused itself

is sufficient to prove the said charge under Section 498-A of the

I.P.C. Therefore, the conviction of the appellant / accused under

Section 498-A of the I.P.C. also does not warrant interference by

this Court. She further contended that there were eye-witnesses

whose statement has been recorded and which was again un-

rebutted and unchallenged and that in their cross-examination

also there is no such statement with which the version of the

eye-witnesses has to be doubted. There is also no reason to

doubt the Dying Declaration given by the deceased before the

Magistrate (PW.6) who had also been extensively examined by

the Trial Court and that there was not much which could be

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elicited from the cross-examination of the Magistrate to doubt

his statement recorded.

12. Having heard the contentions put forth by either side and

on a perusal of the record particularly taking into consideration

the statements of PWs.1 to 3, it would clearly establish the case

of the prosecution that PW.1 (the brother of the deceased),

though he may be an interested witness, but his deposition is

relevant to the incident that his residence was close to the house

of the appellant / accused. Also, PW.1 was staying along with

his mother, i.e., the mother of the deceased as well. PW.1, in his

deposition, there is a categorical statement that for some time

now, the appellant / accused used to suspect the fidelity of the

deceased and used to beat her up several times. He has also

deposed that many an occasion he has himself intervened in the

fight between the appellant / accused and the deceased and

tried to pacify the appellant / accused but he would again ill-

treat the deceased and beat her up whenever he gets drunk.

13. The deposition of PW.1 stands corroborated with the

statement of PW.s 2 and 3, i.e., Smt. Shaheen Begum and

Nazma Begum, both of which were the immediate neighbours to

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the appellant / accused. Both of them are said to have reached

the scene of incident upon hearing the hue and cry of the

deceased, and they found the deceased drenched in kerosene

poured on her by the appellant / accused who thereafter is said

to have set her up ablaze by litting up a match stick. Therefore,

as regards these two witnesses also there is no material available

on record, nor is there any averment in the evidence of the

defence witnesses that PWs.2 and 3 were not having good

relations with the appellant / accused which led to deposing

before the Court against the appellant / accused neither it was

the stand of the appellant / accused that he had any sort of a

strained relationship or animosity with PWs.2 and 3. Further,

PWs.2 and 3 have, in very categorical terms, proved the case of

the prosecution of having witnessed the appellant / accused

frequently subjecting the deceased to cruelty or assault and also

about suspecting fidelity and they also stated that they have

intervened in the fight between the appellant / accused and the

deceased on many occasions and also tried to pacify the

appellant / accused not to assault the deceased. The statement

of these two witnesses further stands fortified from the evidence

of PW.6 (the Magistrate) who had recorded the Dying Declaration

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of the deceased. There also does not seem to be any omissions,

contradictions so far as the statement of PWs.1 to 3 and PW.6 is

concerned. Thus, this Court does not find any good and strong

reason available to hold that the finding of guilt by the Trial

Court so far as the offence under Section 302 of I.P.C. is

concerned, as not having made out. However, we have strong

doubt as to whether the prosecution has been able to make out a

case under Section 498-A against the appellant.

14. For ready reference, the provision of Section 498-A is

reproduced hereunder :

"498-A. Husband or relative of husband of a woman subjecting her to cruelty

-- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.- For the purposes of this section, 'cruelty' means-

a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security is on account of failure by her or any person related to her to meet such demand."

15. A plain reading of the statutory provision would clearly

indicate that the two clauses, viz., Clause (A) and Clause (B)

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reflected in the explanation clause of Section 498-A is not

attracted in the present facts of the case inasmuch as the case of

the prosecution is not that of the burn injuries suffered by the

deceased or self-inflicted at the behest of cruelty or pressure

exerted by the appellant / accused, rather it is a clear case

where the appellant / accused is said to have poured kerosene

from the kerosene container that was in the house upon the

deceased and set her up ablaze by litting up a match stick. As

such, the ingredients required for attracting the provision of